-The European Savings Banks Group (ESBG) considers that some questions and provisions in the second
CESR consultation paper need to be clarified.
Consistency of the CESR proposals and the provisions of the Investment Services Directive (ISD) (93/22/EEC)
In its definition of a “qualifying system” CESR assumes that the operator provides an investment service within the meaning of Section A of the Annex to the ISD. The ESBG recommends that CESR proceed very carefully in a strict analysis of whether the ISD really covers the mere operating of a qualifying system as defined in the CESR consultation paper or whether the ISD only applies where the operator is regarded as an investment firm for other reasons than the operating of the system.
With a view to the increased harmonization of the investors' protection in the European Union, ESBG considers that every ATS should be regarded as an investment firm and therefore be governed by the ISD.
Further distinction between “participant-user” and “client-user”
In so far as that the operator also has a client-relationship with the user the operator’s obligations should be confined to compliance with Conduct of Business Rules. Compliance with Standards n°1 to 6 should only be required of those participants which are not in a client-relationship with the operator (e.g. professional market-makers providing the qualifying system with liquidity).
See full ESBG position paper
© European Savings Banks Group
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